As the United States’ giant, globally unmatched, and racially hyper-disparate mass-incarceration regime exploded in the 1970s and 1980s, the reigning U.S. penal doctrine underwent a significant change. It shifted from the goal of “rehabilitation” to the objective of “incapacitation”—from prisoners’ societal redemption, restoration, and re-entry to their punitive disablement and exclusion.
Incapacitations is a common police and military term. It describes what those vested with the state’s monopoly on legitimate violence are often expected to do to officially designated criminals and enemies. The consequences are often fatal for those on the wrong side of U.S. local, county, state, and federal state guns, grenades, bombs, missiles, artillery shells, drones, bayonets, tasers, SWAT team and Special Forces raids, roadblocks, electric chairs, poison gas vents, and lethal injection syringes. Death is the ultimate “incapacitation.”
The old criminal justice doctrine (rehabilitation) was premised on the notion that most inmates could be “redeemed” and returned to “productive” engagement in civil society. The new doctrine (incapacitation) abandoned that “naïve” liberal sentiment. It said the nation’s growing millions of ex-citizens behind bars or otherwise under criminal supervision (probation, parole, home confinement, electronic monitoring, etc.) was essentially irredeemable. The main and proper goal of the criminal justice system was to “protect society” from the nation’s hopeless criminal class by disabling the incorrigible miscreants.
Disturbingly enough, the concepts of incapacitation and disablement apply shockingly well to the U.S. power elite’s basic attitude and policy towards the U.S. citizenry and towards that elite’s longstanding ultimate nightmare: popular governance and sovereignty—also known as democracy. Listen to U.S. Marxist economist Richard Wolff’s take on how and why U.S. domestic policy shifted well to the regressive, corporate-neoliberal right, leading to the dramatic upward distributions of U.S. wealth, income, and power over the last generation. That shift had nothing to do with a movement toward ideological alignment with big business and the rich on the part of the broad populace. As Wolff noted in his widely read book, Democracy at Work: A Cure for Capitalism (Haymarket, 2012), “The last three decades of U.S. politics did not see a change of political opinion from more left to more right. Rather, what happened was a relative withdrawal from politics on the part of those social groups that favored social-welfare and income-redistribution policies (the New Deal ‘legacy’) and a relative increase in the participation of business and the rich, who used their money to shift the tone and content of U.S. politics [to the right].” Working- and lower-class participation in politics, already constricted by the 1970s, declined significantly under the pressure of stagnant wages, rising working hours, and increased levels of household debt. These burdens “all combined to leave working families with less time and energy to devote to politics—or indeed to social activities and organizations in general” (Wolff).
As described by Wolff, the “relative withdrawal from politics” on the part of the working and lower classes wasn’t about choice. It was about incapacitation—a loss of the “time and energy” required for meaningful civic engagement. It was also about the top-down incapacitation of organized labor, which had provided the main institutional vehicle for capturing and acting on workers’ shared economic and political aspiration in the U.S. for many years.
The decline in popular engagement occurred as U.S. labor unions’ long and steep decline of membership and effectiveness accelerated under employer assault while soaring profits and wealth gave the rich massive resources to invest in capturing the nation’s political and policy processes.
By Wolff’s account—accurate by my estimation—we are dealing with fundamental contradictions between capitalism and democracy. The richer they get, the more the wealthy corporate and financial few are incentivized to influence politics: “Rising economic inequalities are always a concern to those at the top because of the risks of envy, resentment, and opposition.
“There is always the possibility that the economically disadvantaged will seek to use political means to recoup their losses in the economy. The 99 percent might turn to politics to negate the economic gains of the 1 percent. Thus it became—and remains—more important than ever for the 1 percent to use their money to shape and control politics” (Wolff).
The problem is systemic. As Wolff elaborates: “we must question the very possibility of democracy in a society in which capitalism is the basic economic system. A functioning democracy would require that all people be provided with the time, information, counsel, and other supports needed to participate effectively in decision-making in the workplace and the local, regional, and national levels of their residential communities.
“The economic realities of capitalism preclude that for the overwhelming majority of workers, in stark contrast to corporate directors, top managers, their professional staff, and all those with significant incomes from property…. Only a highly mobilized and coordinated organization of the workers could hope to secure the financial resources that might begin seriously to contest the political power of capitalists’ money by combining very small contributions from very large number of donors. This possibility has sufficiently concerned capitalist interests that they have devoted enormous resources to sustaining opposition to workers’ organizations. That opposition helped to produce the last fifty years’ decline in U.S. union membership as a percentage of workers and of political parties seeking to represent workers’ interests against those of capitalist.”
A Friendly Critique
There are some loose ends in Wolff’s analysis. The mechanisms whereby ordinary U.S. workers and citizens are marginalized and disempowered—incapacitated—are far more numerous and complex than Wolff appreciates in his volume (I provide a more comprehensive account of how the U.S. ruling class rules in my book, They Rule: The 1% v. Democracy, (Paradigm Publishers, 2014). Those mechanisms include racist mass incarceration and criminal marking (so ubiquitous that 1 in 3 Black adult males now carries the crippling lifelong mark of a felony record), critical factors in the political disablement of the U.S. working and lower classes.
Democracy at Work is dedicated above all to the proposition that the key task for those who seriously want to empower the working class majority is to create democratic workplaces—what he calls “workers’ self-directed enterprises.” Surely Wolff is aware that the U.S. labor organizations whose decline he bemoans made no fundamental challenge to basic capitalist employer prerogatives. “Big Labor” owed its onetime central presence in American life to its cutting of a basic deal (the “post-World War II labor-capital bargain”) in which it traded away any interest in workers’ control or managerial co-determination in return for a promise of rising wages, benefits, and automatic union dues collection—a deal which helped entrench the militantly hierarchical, alienated, and highly subdivided nature of the capitalist labor process.
There are national differences in the extent to which workers, citizens, and the public good are marginalized and incapacitated by capitalism—differences that do not receive serious attention in Democracy at Work. Western European workers enjoy more capacity to participate in and influence politics, policy, and even workplace/shop-floor relations than do their U.S. counterparts (for historical reasons beyond the scope of the present essay). Union density (the percentage of workers enrolled in unions), collective bargaining, hourly wages, benefits, working hours, the social wage (including government safety nets and health care)—all these and more have tended to hold up to a significantly greater degree for workers and citizens in Western Europe, Canada, Australia, Japan, and New Zealand than in the U.S. across the long neoliberal “globalization” era (1974 to the present). Western European workers also enjoy significantly more independent political representation within their respective national governments. The point should not be exaggerated, for capital rules Europe as surely as it reigns in the U.S., but there are distinctions of degree and form that matter in terms of real-life consequences for workers and citizens on the different sides of the Atlantic and the U.S.-Canada border.
Time as a Democracy Issue
Still, Wolff put his finger on the very critical, and all-too-rarely noted, fact that the U.S. shift to the corporate and financial right from the 1970s on has had nothing to do with the democratic will of the citizenry and everything to do with the economic elites’ political incapacitation of the nation’s working class majority and of whatever economic, social, and political democracy the U.S. working class majority and its progressive allies had achieved during the long New Deal era (1932-1975). The purchase of politicians through ever-escalating private funding of elections and the top-down business class war on U.S. unions are key parts of the incapacitation process, of course.
Wolff deserves special credit, I think, for getting the all-too commonly neglected fact that time is a key democracy issue. Leisure is a core requirement of popular governance/sovereignty. What use, early 19th century labor activists and workers asked, were the American Revolution and the extension of voting rights to property-less citizens if those citizens and workers lacked the time and energy to inform and educate themselves on the issues of the day and to meaningfully participate in civil life? As these union pioneers knew, formal democracy was an empty gift without enough leisure time for the populace to enjoy and utilize its benefits. The struggles for the ten- and, later, the eight-hour work day expressed, among other things, everyday citizen-workers’ desire to meaningfully participate in the purported age of democracy.
That all-too-forgotten history provides interesting context for a disdainful remark made by a veteran Wall Street financial executive in mid-October 2011, when the Occupy Movement was in its short-lived heyday. “It’s not a middle-class uprising,” the banker told the New York Times. “It’s fringe groups. It’s people who have the time to do this” (Nelson D. Schwartz and Eric Dash, “In Private, Wall St. Bankers Dismiss Protestors as Unsophisticated,” New York Times, October 14, 2011). Beyond the fact that most of the Occupiers came from middle- and working-class backgrounds, that Wall Street had created (often unwanted) free time for millions of Americans by collapsing the job market, and that Occupy’s core grievances (the excessive wealth and power of the super-rich and the corrosive impact of America’s shockingly high levels of economic inequality) were shared by most Americans, the most remarkable thing about the banker’s complaint was the scorn it conveyed for the notion that part of the citizenry might actually possess enough time to participate in a protest movement. In a better America, the financial master seemed to think, the populace would be so busy, so occupied, so yoked to what 19th century labor activists routinely called “wage-slavery” (and/or to salary-slavery, debt-slavery, student-hood, private business and home tasks, or other individual pursuits)—so incapacitated by time poverty—that nobody would have enough hours, minutes, and days to fight back against concentrated wealth and power.
“Let the People Be Taught…That They Are Not Able to
Govern Themselves” (by the Founders and Their Constitution)
It is tempting to see contemporary U.S.-capitalist democracy-incapacitation as discontinuous with the nation’s supposedly “democratic” origins and semi-sacred Founders. The temptation should be resisted. The Founders included some brilliant individuals, but their brilliance was harnessed largely to the cause of anti-democracy. Drawn from the elite propertied segments of late British colonial North America, the delegates to the U.S. Constitutional Convention shared their compatriot John Jay’s view that “the people who own the country ought to govern it.” As the celebrated U.S. historian Richard Hofstader noted in his classic text The American Political Tradition and the Men Who Made it (1948): “in their minds, liberty was not linked not to democracy but to property.” Democracy was an extremely dangerous concept to them, conferring “unchecked rule by the masses,” which was “sure to bring arbitrary redistribution of property, destroying the very essence of liberty.” Hofstader’s take on the Founders is born out in historian Jennifer Nedelsky’s comprehensively researched volume Private Property and the Limits of American Constitutionalism (1990). For all but one of the U.S. Constitution’s Framers (James Wilson), Nedelsky noted, protection of “property” (meaning in essence the people who owned large amounts of it) was by far and away “the main object of government.” The non-affluent, non-propertied and slightly propertied popular majority was for the framers “a problem to be contained.”
In Hofstader’s account, New England minister Jeremy Belknap captured the fundamental idea behind the Founders’ notion of what they liked to call “popular government.” “Let it stand as a principle,” Belknap wrote to an associate, “that government originates from the people, but let the people be taught…that they are unable to govern themselves.” Belknap expressed the conflicted, but ultimately authoritarian soul of bourgeois revolutions, whose propertied beneficiaries require the heavy lifting of the dangerous “many-headed mob” (the property-less and property-poor popular classes) in order to overthrow (or in the U.S. case break off from) the old regime. The “masses” are then supposed to retreat to the margins, understanding their incapacity to “govern themselves” and grateful to have the old set of rulers replaced by a supposedly better, more deserving and progressive set of rulers.
Making it “More Difficult for All Who Feel it to
Discover Their Strength” (Madison)
Anyone who doubts the anti-democratic character of the Founders’ world view should read the Federalist Papers, written by the leading advocates of the U.S. Constitution to garner support for their preferred form of so-called popular government. In Federalist No. 10, James Madison argued that democracies “have ever been spectacles of turbulence and contention” and “incompatible with…the rights of property.” Democratic governments gave rise, Madison felt, to “factious leaders” who could “kindle a flame” amongst the dangerous masses for “improper and wicked projects” like “the printing of paper money,” “abolition of debts,” and “an equal division of property.”
Madison recommended two populace-incapacitating safeguards against these “wicked” populace menaces: first, “the delegation of the government to a small number of citizens elected by the rest;” second, the creation of a territorially large nation. The first precaution would “refine and enlarge the public views by passing them through the medium of a chosen body of [wealthy] citizens, whose wisdom may best discern the true interest of the country.” In Federalist No. 63, Madison elaborated on this theme, arguing that an elite legislative chamber (the U.S. Senate) was required as “defense to the people against their own temporary errors and delusions”—including their own “fanatical” preference for equality. Madison’s second safeguard was based on his conclusion that a geographically vast country was superior to a smaller one when it came to diluting popular power. “Extend the sphere,” Madison wrote in Federalist No. 10, and it becomes “more difficult for all who feel it to discover their own strength and act in unions with each other.” As Madison elaborated in Federalist No. 63, “people spread over an extensive region cannot, like the crowded inhabitants of a small district, be subject to the infection of violent passions or to the dangers of combining in pursuit of unjust measures” like the downward distribution of wealth.
In Federalist No. 35, Madison’s fellow Constitution advocate Alexander Hamilton argued that the common people were incapable of serving in Congress and found their proper representatives in the nation’s small class of wealthy merchant capitalists. “The idea of an actual representation of all classes of the people by persons of each class is altogether visionary,” Hamilton wrote. The “weights and superior acquirements of the merchants render them more equal” than the “other classes of the community,” Hamilton explained. The “mechanics [artisans and workers],” Hamilton added, were “sensible that their habits in life have not been such as to give them those acquired endowments” required for “a deliberative assembly.”
Consistent with the authoritarian, “small-r republican” sentiments of the early U.S. republic’s Founders, the nation’s rich white fathers crafted a form of “popular government” that was a monument to popular incapacitation. The U.S. Constitution’s preamble may have claimed that, “We the people” had formed a new government “in order to…establish Justice… promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.” But the Founders’ deep fear and loathing of the “wicked,” “factious” and “violent” masses shaped the structure of America’s great “democratic experiment” at inception.
The Constitution divided the federal government into three parts, with just one-half of one of those three parts (the House of Representatives) elected directly by “the people”—a category that excluded blacks, women, Native Americans, and property-less white males (that is, most people in the early Republic). It set up elaborate checks and balances to prevent the possibility of the common people influencing policy to any significant degree. It omitted any mechanism to enforce elected wealthy representatives’ direct accountability to “the people” between elections and introduced a system of intermittent, curiously staggered elections (two years for the House, six years for the Senate, and four years for the presidency) precisely to discourage sweeping and focused electoral rebellions by the majority. It created an elite Supreme Court appointed for life with ultimate de facto veto power over legislation or executive actions that might too strongly bear the imprint of the dangerous masses. It sanctified the epic un-freedom and anti-democracy of black chattel slavery, permitting slave states to count their savagely disenfranchised and incapacitated chattel towards their Congressional apportionment in the House of Representatives. The Constitution’s curious Electoral College provision guaranteed that the popular majority would not directly select the U.S. president —even on the limited basis of one vote for each propertied white male.
It is true that the Constitution’s Article V provided a mechanism technically permitting citizens to make critical amendments to the nation’s charter document. And U.S. progressives today, and for some time now, have advocated amendments meant to more properly align U.S. politics and policy with public opinion, which stands well to the left of both of the nation’s reigning, business-captive political organizations. Among the changes proposed through the amendment route: abolition of the anti-majoritarian Electoral College and the introduction of direct national popular election and majority choice either in a first multi-party round or (if no candidate attains a majority in the first round) a runoff race between the top two presidential candidates; reversal of the Supreme Court’s equation of political money and “free speech”; the full public financing of campaigns (eliminating private money from public elections); undoing the special legal “personhood” protections enjoyed by corporations; the introduction of proportional representation (whereby seats are awarded to parties in accord with their share of the party, opening the possibility for significant third, fourth, and more parties) into Congressional elections; the elimination of partisan gerrymandering in the drawing of electoral districts; introduction of statehood for the District of Columbia; and the Equal Rights Amend- ment, establishing equal civil and political rights for women and people of non-traditional sexual orientation.
But the established process for amending the U.S. Constitution is absurdly difficult. The left Constitution critic Daniel Lazare argues that the American people are not actually sovereign under that practically sacred founding document thanks in no small part to Article V, which makes it practically impossible for the populace to alter the government. As Lazare observes: “Moments after establishing the people as the omnipotent makers and breakers of constitutions, [the 1787 U.S. Constitution] announced that they would henceforth be subject to the severest of constraints. Changing so much as a comma in the Constitution would require the approval of two-thirds of each house of Congress plus three-fourths of the states. At the time, Article V meant that just four of the 13 states representing as little as 9.7 percent of the total population would be able to veto any change sought by remainder. Today, it means that thirteen out of the 50 states can do the same even though their share of the population stands at as little as 4.2 percent. (In a couple of decades, it will be down to just 3.9 percent.) Over the course of a few thousand words, the people had gone from being all-powerful to virtually powerless… It is important to keep in mind that the people did not assert their sovereignty in Philadelphia in 1787. Rather, the founders invoked it. Once they uttered the magic incantation, moreover, they hastened to put the genie back in the bottle by declaring the people all but powerless to alter their own plan of government…. Democratic politics are crippled as a consequence” (Dan Lazare, “Sovereignty and the Constitution,” June 16, 2013, http://daniellazare.com/).
This harsh reality—hardly unintended or accidental—defies both the Constitution’s preamble and the U.S. Declaration of Independence’s determination that governments “derive[e]…their just powers from the consent of the governed, —That whenever any Form of Government becomes destructive of [humans’ rights to life, liberty, and the pursuit of happiness], it is the Right of the People to alter or to abolish it, and to institute new Government.”
The same corporate and financial largesse that plays such a critical role in tilting the nation’s elections towards the business-friendly right would also come into play in powerful ways in fighting efforts to amend the U.S. Constitution in any way meant to further the causes of social justice, equality, and real democracy.
As Lazare (author of the aptly titled volume Frozen Republic: How the Constitution is Paralyzing Democracy, (1997) and other Constitutional scholars have shown, we are still dealing on numerous levels with the purposefully authoritarian and democracy-incapacitating consequences of the nation’s practically deified founding document. It’s an important point telling us among other things that nationally specific political and government histories and structures matter. The United States was largely pre-capitalist at the time that the U.S. Constitution was set up—something that ought to remind us in its own way that the barriers to genuine popular governance/sovereignty cannot be reduced simply to capitalism, however centrally the profits system stands as a barrier to democracy at home and abroad.
Paul Street’s next book is They Rule: The 1% v. Democracy.